Single Overall Agreement

Single Overall Agreement

In rejecting the applicants` means, the Tribunal found that the concept of CIS had been properly applied in these circumstances. However, the Tribunal also held that any party would be held liable only to the extent that it was the subject of the offence as a whole. Despite the fact that the agreement consisted of bilateral contacts, the Tribunal found that the parties shared a single anti-competitive objective and agreed with the Commission that the similarity between these bilateral contacts, the identity of the participants and the date of the contacts were all evidence of the same overall plan. Although it was established that Infineon had participated in a CIS, it was considered that infineon was only aware of certain parties, and these only elements were held responsible and the fine was reduced accordingly. The recent decisions of Philips and Infineon of the court show that, although there is a desire to potentially reduce fines if the Court of Review finds that the Commission has placed too much emphasis on the extent of a company`s involvement in the implementation of a common plan, the cancellation of such a plan is a much greater obstacle. No judgment disturbs the current legal consensus that a lack of knowledge of a contact company between other cartel participants or limited participation in an agreement does not preclube the finding of a uniform and continuing infringement if evidence of a common plan is established. On the contrary, knowledge and participation relate only to assessing the seriousness of the offence and determining fines. A situation in which only one (or less) buyer and seller of a given product is present in a market. Concentration when buying the product leads to an interdependence between the seller and the buyer. In certain circumstances, the buyer may exercise clearing power to limit the market power of a single or smaller seller on the market and lead to higher production and lower prices than under monopoly or oligopoly.

In its appeal, Philips challenged the Commission`s characterization of the infringement as sci, arguing that all contacts were only bilateral and were themselves associated with only a limited number of such contacts. Referring to previous case law, the Tribunal rejected Philips` assertions and noted: «A company`s involvement in a single offence… may take different forms»[11] and this: «a company that has participated in a single and continuing infringement… can also be held responsible for the behaviour… other companies in connection with the same offence for the duration of their participation in the offence. [12] The Tribunal recognized that the Commission must demonstrate that the company is or must be aware of the general scope and essential characteristics of the agreement as a whole. If such evidence is proven, the fact that a company did not participate in all the elements of an agreement or played only a minor role must be taken into account only in considering the seriousness of the infringement and, if so, determining the amount of the fine. [13] Philips also submitted that the Commission had mistakenly concluded that there was a single anti-competitive objective, that there was common conduct, and that it was aware of other anti-competitive discussions. The Tribunal also rejected this argument and argued that the evidence provided a «common objective between the parties.» Moreover, where a common objective leads to the finding of a uniform offence is found, there is no need to establish common conduct[14] and the Commission has found, according to the necessary standard, that the applicant parties have retained the ignorance of their conspiratorial competitors for anti-competitive actions.

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